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CHAPTER 16 Ethical and Legal Issues

Ethical and Legal IssuesCHAPTER

16CHAPTER OUTLINE

CHAPTER HEADINGS INSTRUCTION IDEAS AND TEXTBOOK CORRELATIONS

ETHICAL ISSUES

An Ethical Principle: The Role of Confidentiality

Learning Objectives: 16.1, 16.2, 16.3, 16.4Learning Concepts: ambiguities regarding confidentiality; limits of confidentiality: HIPAA in action; legal restrictions on confidentiality; privileged communicationLearning Activity 16.1: APA Code of EthicsLecture Enhancement 16.1: The Internet and ConfidentialityTextbook Tool: Table 16.1

Informed Consent to Participate in Research on Mental Illness: Can Patients Truly Be Informed?

Learning Objective: 16.5Learning Concepts: ability to understand and reason, educational videos to increase awareness

CRIMINAL ACTIONS AND INSANITY

While Committing the Crime: Sane or Insane?

Learning Objective: 16.6Learning Concepts: criminally responsible, insanity, the M’Naghten test, the irresistible impulse test, the Durham test, the American Legal Institute test, insanity defense reform actsLearning Activity 16.2: Comparison of the Insanity TestsTextbook Tools: Table 16.2; Case 16.1

The Insanity Defense: Current Issues

Learning Objectives: 16.7, 16.8, 16.9Learning Concepts: prevalence, wrong versus illegal, abstract versus specific understanding, assessing insanity for the insanity defense, states’ rights: doing away with the insanity defense, with the insanity defense do people really “get away with murder”?


After Committing the Crime: Competent to Stand Trial?

Learning Objective: 16.10Learning Concepts: competency to: understand proceedings, facts in the case, and legal options, consult with the lawyer reasonably rationally, assist the lawyer to build the defense; medication use for competencyTextbook Tool: Case 16.2

DANGEROUSNESS: LEGAL CONSEQUENCES

Learning Objective: 16.11Learning Concepts: dangerousness as a legal term; four components: severity, imminence, frequency, probability

Evaluating Dangerousness

Learning Objectives: 16.12, 16.13Learning Concepts: either/or nature of dangerousness, confidentiality, risk factors; involuntary treatment: imminent risk of committing a violent crime or deemed an imminent risk when about to be released from incarceration or hospital treatmentTextbook Tool: Table 16.3

Actual Dangerousness Learning Objective: 16.14Learning Concepts: prevalence of dangerousness in the mentally ill; risk factors: psychosis, delusions that lead to anger, serious mental illness combined with substance abuseTextbook Tool: Figure 16.1

Confidentiality and the Dangerous Patient: Duty to Warn and Duty to Protect

Learning Objective: 16.15Learning Concepts: Tarasoff rule, duty to protect, duty to warn

Maintaining Safety: Confining the Dangerously Mentally Ill Patient

Learning Objectives: 16.16, 16.17, 16.18, 16.19Learning Concepts: criminal commitment, civil commitment, mandated outpatient commitment, reality of treating chronic mental illness, Kendra’s law, sexual predator lawsLecture Enhancement 16.2: Mental Health CourtsTextbook Tool: Case 16.3Worth Video Anthology for Abnormal Psychology: 130. Outpatient Commitment: Forcing Persons Into Mental Health

Treatment 131. Jailing the Mentally Ill 132. When Treatment Leads to Execution: Mental Health and the Law

LEGAL ISSUES RELATED TO TREATMENT

Right to Treatment Learning Objective: 16.20Learning Concepts: least restrictive treatment setting, Lake v. Cameron; minimal criteria for therapy, Rouse v. Cameron; discharge criteria, O’Connor v. Donaldson

Right to Refuse Treatment

Learning Objective: 16.20Learning Concepts: a civilly committed patient has the right to refuse; exceptions


Competence to Refuse Treatment

Learning Objective: 16.20Learning Concepts: difference from competency to stand trial; assessmentLearning Activity 16.3: Debate on the Right to Refuse Treatment

Mental Health and Drug Courts

Learning Objective: 16.21

THE WHEELS OF JUSTICE: FOLLOW-UP ON ANDREW GOLDSTEIN

LEARNING OBJECTIVESAfter completing this chapter, students should be able to:16.1 Describe the role of and ambiguities regarding confidentiality in mental health ethics.16.2 Articulate the changes in confidentiality that resulted from the Health Insurance

Portability and Accountability Act (HIPAA) of 2002.16.3 Detail the legal restrictions on confidentiality.16.4 Expound on the definition of privileged communication.16.5 Identify the general rule that defines informed consent to participate in research

on mental illness.16.6 Describe each of the five tests that have been used in the United States to determine

whether a person is insane.16.7 Identify the two unresolved issues regarding the federal requirements for the insanity

defense.16.8 Describe the factors to consider when assessing an insanity defense.16.9 Identify two alternative options to pleading the insanity defense used in some states.16.10 Detail the requirements for competency to stand trial.16.11 Define dangerousness according to its four components regarding potential harm.16.12 Articulate the research findings regarding the risk factors that could best identify which

patients discharged from psychiatric facilities would subsequently act violently.16.13 Identify under which two types of situations an incarcerated or hospitalized individual who

is considered dangerous can continue to be incarcerated or hospitalized.16.14 Identify the two circumstances related to mental illness that increase dangerousness.16.15 Detail the options for mental health professionals who decide that a patient is about

to harm a specific person.16.16 Describe criminal commitment and civil commitment.16.17 Describe the history and findings associated with both inpatient and outpatient commitment.16.18 Expound on some of the problems encountered when trying to obtain appropriate

treatment for people with chronic or severe mental illness.16.19 Detail the history of sexual predator laws.


16.20 Describe each of the various court rulings regarding the rights of the mentally ill, including right to treatment, right to refuse treatment, and competence to refuse treatment.

16.21 Define the roles of drug courts and mental health courts.

KEY TERMSConfidentiality: The ethical requirement not to disclose information about a patient (even whether someone is a patient) to others unless legally compelled to do so.

Privileged communication: Confidential information that is protected from being disclosed during legal proceedings.

Criminally responsible: The determination that a defendant’s crime was the product of both an action or attempted action (the alleged criminal behavior) and his or her intention to perform that action.

M’Naghten test (or rule): The legal test in which a person is considered insane if, because of a “defect of reason, from disease of the mind,” he or she did not know what he or she was doing (at the time of committing the act) and did not know that it was wrong.

Irresistible impulse test: The legal test in which a person is considered insane if he or she knew that his or her criminal behavior was wrong but nonetheless performed it because of an irresistible impulse.

Durham test: The legal test in which a person is considered insane if an irresistible impulse to perform criminal behavior was due to a mental defect or disorder present at the time of the crime.

American Legal Institute test (ALI test): The legal test in which a defendant is considered insane if he or she either lacks a substantial capacity to appreciate that his or her behavior was wrong or has a diminished ability to make his or her behavior conform to the law.

Competency to stand trial: The determination that a defendant’s mental state during the time leading up to the trial that enables him or her to participate in his or her own defense.

Dangerousness: The legal term that refers to someone’s potential to harm self or others.

Tarasoff rule: A ruling by the Supreme Court of California (and later other courts) that psychologists have a duty to protect potential victims who are in imminent danger.

Criminal commitment: The involuntary commitment to a mental health facility of a person charged with a crime.

Civil commitment: The involuntary commitment to a mental health facility of a person deemed to be at significant risk of harming himself or herself or a specific other person.

CHAPTER GUIDE

Chapter Introduction• Andrew Goldstein, who had a 10-year history of mental illness, pushed Kendra Webdale

in front of a subway train in New York City in 1998, causing her immediate death.


Although Goldstein was thought to have murdered Webdale, the case turned out not to be so simple.

• This chapter examines legal and ethical issues pertaining to mental health professionals and patients and also thoroughly examines criminal actions and their consequences when the actions are by those who are mentally ill.

I. ETHICAL ISSUESWhat are the clinician’s ethical obligations when a patient threatens the safety of others?

A. An Ethical Principle: The Role of ConfidentialityEach mental health profession has its own code of ethics, with commonalities among all the codes. [See Table 16.1]

• The most important commonality is the requirement to maintain confidentiality—not to disclose to others information about a patient at any time unless legally mandated to do so.

• Mental health records must remain confidential.• Patients must be informed as to the limits of confidentiality.

LEARNING ACTIVITY 16.1: APA Code of Ethics

Objective: To expose students to the APA Code of Ethics.

Time: 40 Minutes

Discussion: 60 Minutes

Directions:1. Print out a copy of the American Psychological Association’s Ethical Principles of

Psychologists and Code of Conduct at http://www.apa.org/ethics/code/index.aspx. The code of ethics covers the following areas:• Principles• Resolving ethical issues• Competence• Human relations• Privacy and confidentiality• Advertising and public statements• Record keeping and fees• Education and training• Research and publication• Assessment• Therapy

2. Have the students break into small groups and divide the 11 topics mentioned here among the groups.

3. Have each group summarize the major points of each section for their classmates.

Summary: Students will be surprised to learn information about various ethical standards, such as having to wait two years before having relations with a former client, and how long

http://www.apa.org/ethics/code/index.aspx.


counselors are required to keep client records.

Questions to Students and Discussion: What surprised you about the Code of Conduct? What do you feel is missing from the Code? Describe what you learned about confidentiality. How does the information about confidentiality compare to what you learned about this topic in your text?

1. Ambiguities Regarding Confidentiality

• Issues surrounding confidentiality can be complex and difficult to resolve.• Members of a counseling group (couples or group counseling) may choose to

discuss what happens in therapy sessions with people who are not part of the group; group members are asked to maintain confidentiality about their sessions.

• A legal minor falls outside the bounds of confidentiality.• The clinician will discuss, with a minor old enough to understand, the limits of

confidentiality, pointing out possible circumstances that would require the clinician to share information with the parents.

• Digital technology has led to new concerns about maintaining confidentiality of electronic records, e-mail, and remote therapy.

2. Limits of Confidentiality: HIPAA in Action

• The Health Insurance Portability and Accountability Act (HIPAA) was passed in 2002 and widened the set of circumstances under which confidential information can be shared with other individuals and organizations that care for or monitor patients.

• A patient’s information can be shared legally with other health providers without the patient’s permission.

• A patient must give written consent to have psychotherapy notes shared with anyone. For other clinicians or organizations, only dates of treatment, diagnosis and prognosis, and medications prescribed can be shared.

• Patients have less control over their health records. Health care information can be shared without getting consent under the following circumstances:i. Litigation: The opposing lawyer in a lawsuit can request the health

information of a patient from a provider and can also request medical records of witnesses.

ii. The person is a police suspect: Police can request health information about a suspect without having a warrant or being under any judicial oversight.

iii. Marketing efforts by health providers and their business associates: The patient’s clinician or mental health center can notify the patient by mail of treatments, groups, etc. that may interest the patient.

iv. Research: A patient’s medical records may be used in a research study without the patient’s permission.

• The law specifies that only minimal information be disclosed, unless the purpose of sharing information is to facilitate treatment.

3. Legal Restrictions on Confidentiality


States have laws of confidentiality, but there are exceptions. Typically, the exceptions include:

• When the patient gives the clinician permission to violate confidentiality (Example: giving explicit permission to a therapist to talk to the patient’s spouse)

• When the clinician suspects abuse of children, the elderly, or the disabled (the clinician must then report the abuse to the authorities)

• When the clinician has reason to believe a patient is likely to harm himself/herself (the clinician must then take steps to protect the patient)

• When the clinician has reason to believe that a patient is likely to harm another, specific person (the clinician must then take steps to protect the other person)

LECTURE ENHANCEMENT 16.1: The Internet and Confidentiality

Objective: To learn about confidentiality and the Internet.

Time: 20 Minutes

Lecture Points:I. Issues

A. The California Healthcare Foundation examined the privacy documents for 21 Internet health sites.

B. Most of these sites allow third-party advertisers to obtain information about clients.C. It was discovered that third-party ad networks received access to information that

allowed them to build detailed, personally identified profiles of individual’s health conditions and patterns of Internet use.

II. Suggestion to ClientsA. Clients should be made aware that their personal information may be shared with a

third party if they choose to use an Internet health site.III. Suggestion to Companies

A. Evaluate the privacy policy.B. Compare the policy to the actual information given to the third parties.C. Allow clients to have more privacy when they use the online resources.D. Develop a standard policy among Internet health care providers.

Source: Rabasca, L. (2000). Confidentiality not guaranteed by most health Web sites, report finds. APA Monitor, 31(4), 13.

Questions to Students and Discussion: What surprised you about this information? Why? Do you think it is ethical for health care companies to allow third-party access to client information? Why or why not? What suggestions would you add to the list?

4. Privileged Communication• Although confidentiality is an ethical term, privileged communication is a legal

term referring to confidential information that is protected from being disclosed during legal proceedings.

• Not all confidential information is privileged, and vice versa. When the law of


privileged communication conflicts with the ethics of confidentiality, patients should be told of the limits of confidentiality as soon as possible.

• The patient usually, but not always, decides if information shared with a clinician can be revealed. Exceptions to privileged communication include:i. Mental health evaluations that are ordered by a judge (in some courts,

depending on the jurisdiction)ii. Civil lawsuits that raise the issue of personal injury (with mental health

consequences) in the suit (Example: a clinician’s testimony if a patient or former patient sues his employer for anguish resulting from harassment at work)

• During lawsuits, judges decide on a case-by-case basis whether a therapist of a group therapy session must testify. Group members may be compelled to testify.

B. Informed Consent to Participate in Research on Mental Illness: Can Patients Truly Be Informed?Potential participants in a psychological research study must be capable of understanding and reasoning about what they are consenting to, which may be more important to informed consent than whether the person is psychotic or otherwise impaired at the time of consent.

II. CRIMINAL ACTIONS AND INSANITY• Insanity, a legal concept not found in DSM-5, is measured by determining if a

person was criminally responsible (meaning a defendant’s crime was the product of both an action or attempted action and his or her intention to perform that action) at the time of a crime.

• The legal system asks two sets of questions to determine if the defendant in a trial is suffering from a mental illness:i. What was the defendant’s mental state at the time of the (alleged) criminal

act? (Is the insanity defense appropriate?)ii. What was the defendant’s mental state during the post-crime assessment, and

what is his/her mental state now? (Can he/she assist in her own defense? Is he/she competent to stand trial?)

MEDIA RECOMMENDATION 16.1: A Crime of Insanity

Objective: To learn about a real case in which the legal and mental health systems clashed.

Time: 66 Minutes

Media and Discussion: 111 Minutes

Discussion Only: 45 Minutes

Explore Online:Murdock, D., Navasky, M. & O’Connor, K. Frontline: A Crime of Insanity. WGBH Educational Foundation. http://www.pbs.org/wgbh/pages/frontline/shows/crime/


Read about Ralph Tortorici, a paranoid schizophrenic charged with a violent crime, and the complex problems his lawyers faced in mounting an insanity defense.Watch a short clip of Attorney Cheryl Coleman discussing the difficulty in finding a psychiatrist who is willing to testify that her client is sane at http://www.pbs.org/wgbh/pages/frontline/shows/crime/etc/excerpt_hi.html

Summary: Students will learn the controversies and ethical issues surrounding an insanity defense. They may be surprised to learn that there are psychiatrists who are willing to testify for payment. Students will also learn about how the legal and mental health systems can clash with one another.

Questions to Students and Discussion: What standards did the lawyers use to determine Tortorici’s sanity? Do you agree with the lawyers’ actions? Why or why not? What interventions might have prevented this event from happening?

A. While Committing the Crime: Sane or Insane?The following are the five tests that the United States legal system has used over time to determine insanity.

1. The M’Naghten Test• A Scottish man in 1841 England, Daniel M’Naghten, attempted to kill British

Prime Minister Sir Robert Peel, but killed his secretary instead, because M’Naghten believed that Peel was personally responsible for M’Naghten’s woes.

• The M’Naghten test (or rule) asks at a trial whether the defendant, only at the time of committing the act, knew what he/she was doing and knew it was wrong.

2. The Irresistible Impulse Test• In 1886, the irresistible impulse test focused on whether the defendant knew that

the criminal behavior was wrong but nonetheless performed it because of an irresistible impulse.

• The test centered the legal definition of insanity on the extent to which the behavior was uncontrollable.

3. The Durham Test• The Durham test, created after a 1954 Supreme Court ruling, broadened the test

for the insanity defense again by seeking to determine whether the irresistible impulse was due to mental defect or a disorder present at the time of the alleged crime.

• The ruling shifted from considerations about morality (knowing right from wrong) to the realm of science (having a mental impairment), but left unclear the following:i. What constituted a mental defect or disorderii. Whether the criminal behavior was caused by the disorder or defect

• Only New Hampshire still uses this test.

4. The American Legal Institute Test• The institute proposed two alternative criteria, known as the American Legal

Institute test (ALI test) for insanity:


i. The person lacks a substantial capacity to appreciate that the behavior was wrong (versus no capacity).

ii. The person has a diminished ability to make his or her behavior conform to the law (an irresistible impulse).

• The elements of the above American Legal Institute (ALI) test are referred to as knowledge (cognition) and impulse (volition).

• The test prevents people from using their antisocial personality disorder or illegal substance use as the basis for an insanity defense.

• This test continues to be used by many states.

5. Insanity Defense Reform Acts

• The insanity test changed again in 1984 after John Hinckley’s 1981 assassination attempt on then-President Ronald Reagan. Hinckley was found not guilty by reason of insanity.

• Through the reform acts of 1984 and 1988, the legal system asks if an individual has a severe mental defect or disorder that causes a diminished capacity to understand right from wrong.

• The acts also eliminated the irresistible impulse element in federal courts.• Having a disorder in and of itself does not constitute an insanity defense. [See

Table 16.2 and Case 16.1]

LEARNING ACTIVITY 16.2: Comparison of the Insanity Tests

Objective: To compare and contrast the different tests used to determine whether someone is sane or insane.

Time: 30 Minutes

Directions: Ask students to fill out the chart on Worksheet 16.1 to compare and contrast the different tests used to determine whether someone is insane.

Summary: The chart will help students easily compare and contrast these tests. Students will be able to see how the tests shifted from measuring one’s impulsivity to examining one’s mental capacity.

Questions to Students and Discussion: How has the test for sanity changed over time? What surprised you about these tests? What do you think is an appropriate measure of a person’s sanity?

B. The Insanity Defense: Current IssuesThe federal courts still need to resolve two ambiguous issues about how the insanity defense can be applied.

• Whether the person knew the act was wrong (moral issue) versus illegal (legal issue)• Whether the person knew that the specific behavior was wrong in a particular

circumstance versus whether he/she knew in the abstract that the act was wrong

1. Assessing Insanity for the Insanity Defense


• Juries, when determining whether a defendant was insane at the time a crime was perpetrated, rely on testimonies from friends, family members, witnesses, or mental health clinicians.

• Mental health clinicians, when determining whether a defendant was insane at the time a crime was perpetrated, may interview the defendant and administer and interpret psychological tests. These evaluations must take into account events that had happened after the crime and before the evaluation. Examples: experiences in jail, current medications, decision to plead not guilty by reason of insanity (NGBI), reactions to the crime, coaching from a lawyer or other inmates, and responses to various assessment methods.

• Past psychiatric history does not necessarily indicate a person’s mental state at the time he/she committed a crime.

2. States’ Rights: Doing Away with the Insanity Defense

Some states have abolished the insanity defense, replacing it with a defense that a defendant did not have “free will” while committing a crime. Two alternative options are:

• Diminished capacity: A person, due to mental illness or defect, was less able to understand that the criminal act was wrong or to formulate a specific intention. The person receives a lesser sentence, is convicted of a lesser crime, or receives a modified form of punishment.

• Guilty but mentally ill: A convicted defendant is often sent to a psychiatric facility and may serve time in prison if his/her mental state improves over time, or the defendant may be sent to a prison immediately, where he/she may or may not receive psychiatric care.

3. With the Insanity Defense, Do People Really “Get Away with Murder”?

• A landmark study of 9,000 felony cases across eight states from 1976 to 1987 found that only 1% used the insanity defense, only one-fourth of that 1% were acquitted, and, of that one-fourth of 1%, only 7%, or two cases, were acquitted by a jury rather than a judge.

• The average time spent in jail by defendants who were found guilty (5 years) was comparable to the average time spent in a mental hospital by those who were found NGBI (4.7 years).

C. After Committing the Crime: Competent to Stand Trial? [See Case 16.2]

• Competency to stand trial is based on an evaluation of mental state during the time leading up to the trial, resulting in a judgment as to whether a mental defect or disorder prevents the defendant from participating in his/her own defense. A person who is competent to stand trial will be able to:i. Understand the proceedings that will take placeii. Understand the facts in the case and the legal options availableiii. Consult with his/her lawyer “with a reasonable degree of rational understanding”iv. Assist the lawyer in building the defense

• Until recently, the courts have viewed competency to stand trial as a black-and-white issue—a defendant either can or can’t.


• The same standard is used to determine if a defendant is competent to plead guilty or competent to waive the right to an attorney.

• Someone found not competent is referred for mental health treatment. Sometimes they are medicated against their will.

• The Supreme Court ruled that mentally ill patients accused of nonviolent crimes may not be forced to take medication in order to become competent.

• If unlikely to become competent to stand trial, and deemed a danger to self or others, the defendant may be civilly committed to a psychiatric facility.

III. DANGEROUSNESS: LEGAL CONSEQUENCESDangerousness is a legal term referring to someone’s potential to harm self or others. The potential harm of someone who is determined dangerous is broken down into four components:• Severity: How much harm might the person inflict?• Imminence: How soon might the potential harm occur?• Frequency: How often is the person likely to be dangerous?• Probability: Is the person likely to be dangerous?

A. Evaluating Dangerousness [See Table 16.3]

• Clinicians are asked to evaluate if a person is dangerous or not using severity, imminence, and likelihood of potential harm.

• Major risk factors for a patient to act violently include:i. Prior serious crimes and greater frequency of crimesii. Having experienced serious child abuse and high frequency of child abuseiii. The individual’s father used drugs and/or was absentiv. Being younger, male, and unemployed are risk factorsv. A diagnosis of antisocial personality disordervi. Substance abuse problemsvii. Anger management problemsviii. Having violent fantasiesix. History of a loss of consciousnessx. Came to treatment involuntarily

• A person is committed to incarceration or hospitalization only in two situations:i. When the person hasn’t yet committed any violent crime, but is perceived to

be at imminent risk to do soii. When the person has already served a prison term or received mandated

treatment in a psychiatric hospital and is about to be released but is perceived to be at imminent risk of behaving violently

B. Actual Dangerousness• Criminal behavior by the mentally ill is no more common than that by the

general population.


• Two general situations increase dangerousness:i. When psychosis is involved and the person may be a danger to self and/or othersii. When serious mental illness is combined with substance abuse [See Figure 16.1]

• Mentally ill individuals who are in jail or prison are usually there for minor nonviolent offenses related to trying to survive (e.g., stealing food) or to substance abuse.

C. Confidentiality and the Dangerous Patient: Duty to Warn and Duty to Protect• The Supreme Court of California ruled that psychologists have a duty to protect

potential victims who are in imminent danger, a rule known as the Tarasoff rule.• Clinicians who think their patients might harm a specific person can:

i. Warn the intended victim or someone else who can warn the victimii. Notify law enforcementiii. Take other reasonable steps, depending on the situation (Example: Have a

patient committed to a psychiatric facility)• The rule gives clinicians the duty to protect, not just warn, and the obligation to violate

confidentiality in order to do so. The rule does not cover danger to property.

D. Maintaining Safety: Confining the Dangerously Mentally Ill Patient1. Criminal Commitment

• Criminal commitment happens when a person charged with a crime is involuntarily committed to a mental health facility. This can take place before or after a crime:i. Prior to the trial, the person will be evaluated on competence to stand trial

and will be provided treatment to become competent to stand trial.ii. After the trial, a person acquitted due to insanity will be committed.

• The law states it is illegal to confine someone indefinitely under criminal commitment, but it is unclear as to how long a person can remain committed.

2. Civil Commitment

• A person deemed dangerous who has not committed a crime can be judicially confined to a mental health facility, which is called civil commitment.

• There are two types of civil commitment:i. Inpatient commitmentii. Outpatient commitment with monitoring and/or treatment programs [See Case 16.3]iii. Some civil commitments are voluntary; the patient agrees to the hospitalization

a. Inpatient Commitment:• A study found that half of inpatients who thought they didn’t need

hospitalization later shifted their views.• Patients did not feel coerced when family members used concern, persuasion,

and inducements, whereas the use of force or threats or not being able to tell their “story” did feel like coercion.

b. Mandated Outpatient Commitment:• This type of commitment was developed in the 1960s and 1970s as a less


restrictive legally mandated alternative to inpatient care.• It typically includes psychotherapy, medication, and periodic monitoring by

a clinician.• A study found that mandated outpatient commitment is more effective than

inpatient treatment followed by freedom after discharge because those who received mandated outpatient treatment:i. Had less frequent and shorter hospitalizations in the futureii. Were less violentiii. Were less likely to be victims of crime themselvesiv. Were more likely to take their medicine or seek other treatments

c. The Reality of Treatment for the Chronically Mentally Ill:• Space at psychiatric facilities is not always available for patients deemed

mentally ill by the legal system.• Community-based forms of care are not adequately funded.• Therefore, most people with severe mental illness lack adequate supervision, care,

or housing.

LECTURE ENHANCEMENT 16.2: Mental Health Courts

Objective: To learn about how mental health courts can treat defendants with more dignity and reduce recidivism.

Time: 30 Minutes

Lecture Points:I. Issue

A. There has been an increase in the number of mentally ill defendants in the United States.B. President Clinton passed the America’s Law Enforcement and Mental Health Project Act

(in 2000) to provide funds for those who wanted to establish mental health courts to deal with mentally ill defendants.

C. Currently there are over 100 such courts in the United States.D. These courts seek to find the best treatment for the defendants.

II. ResultsA. Very little research has been conducted on these courts.B. However, Portland State researcher Heidi Herinckx found that the defendants were over

four times less likely to reoffend, probation violations dropped 62%, and those with three or more arrests dropped from 26% to 3%.

III. DrawbacksA. These courts are short of funding and have few clients.B. Ensuring the judgments are carried out is difficult.

Summary: Students will enjoy hearing about a new method of treating those who are mentally ill and commit crimes. Students will also be surprised to learn about one researcher’s amazing findings.

Source: Inside a Mental Health Court, http://www.pbs.org/wgbh/pages/frontline/released/inside/

http://www.pbs.org/wgbh/pages/frontline/released/inside/


Questions to Students and Discussion: Do you believe such a program would be helpful in your community? Why or why not? What kind of issues does the use of an alternative court raise? What are your thoughts about other possible ways to work with those who have a mental illness and commit a crime?

3. Sexual Predator Laws

• Before the 1930s a sexual offense was viewed as a criminal offense that the perpetrator was able to, but did not, control.

• In the 1930s sexual offenses were viewed as related to mental illness and treatment programs appeared. Treatment was not effective, however.

• By the 1980s sexual offenses were again seen as crimes, and prison as the appropriate consequence.

• In the 1990s some states passed laws to deal with sexually violent predators and saw them as having no or poor control of their impulses. Since treatment had not been effective, these laws called for incarceration as a preventive measure.

• The government takes on the role of “parent” (parens patriae), protecting the public from threats and caring for those who cannot take care of themselves.

• After a 1997 Supreme Court ruling, sexual predators about to finish their prison sentence could be committed to a psychiatric hospital indefinitely if deemed likely to reoffend and suffering from mental abnormalities or personality disorders.

• In 2002, the Supreme Court ruled that in order to commit a sexual offender indefinitely after serving a jail or prison sentence, it must be demonstrated that the person has difficulty controlling the behavior.

• In prison, treatment is voluntary; with commitment, it is mandatory.

IV. LEGAL ISSUES RELATED TO TREATMENTCourt decisions in the 1960s and 1970s addressed the right to treatment and right to refuse treatment.

A. Right to Treatment• 1966: Supreme Court ruled that people receiving treatment through civil

commitment should be given the least restrictive alternative treatment available.• 1967: Supreme Court ruled that civil commitment must accompany

appropriate treatment.• 1970s: Various courts outlined specific minimal criteria for treatment accompanying

civil commitment:i. Minimum staffing ratioii. Minimum number of treatment hours per weekiii. Individualized treatment plans for every person

• The Supreme Court also ruled that patients of civil commitment be released once they no longer meet the criteria for commitment and can survive on their own or with help from willing family members.


B. Right to Refuse Treatment• A New Jersey federal district court ruled that civilly committed patients may refuse

treatment. A hearing can take place that may or may not result in overriding this ruling.• Factors to consider in a hearing to override a patient’s right to refuse treatment include:

i. Whether the patient is physically threatening to othersii. If the proposed treatment includes only a small risk of irreversible side effectsiii. If there are no less restrictive treatment alternatives availableiv. If the patient has significantly diminished capacity to decide rationally about specific

treatments

C. Competence to Refuse Treatment• About half of schizophrenia patients performed reasonably well on decision-

making assessment tests.• After two weeks of treatment, schizophrenia patients whose symptoms improved

also improved in their decision-making abilities related to competence.• About 75% of patients with the diagnosis of depression performed adequately

on decision-making assessment tests.• The law does not provide this same right to refuse treatment to those required to

follow outpatient commitment treatment plans.

LEARNING ACTIVITY 16.3: Debate on the Right to Refuse Treatment

Objective: To learn about the different sides of the issue of the right to refuse treatment.

Time: 30 Minutes

Directions: Students should form two groups: One group defends the right to refuse treatment, while the other group defends the right to force people into treatment. Using their textbook, each group should develop support for its side in order to debate the issue in class.

Summary: Students will be surprised to learn about how complex the right to refuse treatment is: How do we respect individual rights while protecting others and the person in crisis?

Questions to Students and Discussion: How did your beliefs change from having this debate? If you were a clinician or attorney, how might you make the decision of whether or not to involuntarily commit someone? How difficult was it to switch sides of the argument?

D. Mental Health and Drug Courts• Municipalities created two special courts to address more quickly legal cases

related to the mentally ill: drug courts and mental health courts.• As an alternative to jail, drug courts offer first-time drug abusers the opportunity to

attend a drug treatment program; submit to random, frequent drug testing; and meet with the drug court judge regularly. These people are sent to jail immediately if they miss a court hearing.

• The goal of drug courts is to reintegrate defendants into society through intensive


treatment, relapse prevention, education, and employment.• Drug courts recognize the complex nature of factors that contribute to drug abuse.• Relapse rates are between 4% and 20% for those entering a program and less than

4% for those who complete a program.• Mental health courts seek to treat, rather than incarcerate, mentally ill people charged

with misdemeanors.• Treatment leads to less likelihood of reoffending or being violent.

V. THE WHEELS OF JUSTICE: FOLLOW-UP ON ANDREW GOLDSTEINAndrew Goldstein’s jury deadlocked, making a second trial necessary. At his second trial, his attorneys had him stop his medication so jurors could see the extent of his mental illness. This was controversial because mental state at the time of the trial could not be used to determine his mental state at the time of the crime. The judge allowed this as long as Goldstein was offered medication and, if he appeared to become not competent to stand trial, he be forced to take it. Several weeks after stopping Goldstein hit his social worker, was put back on medication, and did not testify. He was found guilty, although the jury acknowledged he was mentally ill. He was sent to prison and evaluated for the need for psychiatric hospitalization to become stable. Eight years later his conviction was overturned due to a technical error. He had a third trial, pleaded guilty and was given a 23-year sentence with five years of psychiatric supervision after his release.

ADDITIONAL READINGS

Journal ArticlesEgley, L. C. (1991). Defining the Tarasoff duty. The Journal of Psychiatry and Law, 19, 99–133.Fazel, S., & Grann, M. (2006). The population impact of severe mental illness on violent crime. American Journal of Psychiatry, 163, 1397–1403.Hiday, V. A., & Wales, H. W. (2003). Civil commitment and arrests. Current Opinion in Psychiatry, 16, 575–580.McNiel, D. E., & Binder, R. L. (2007). Effectiveness of a mental health court in reducing criminal recidivism and violence. American Journal of Psychiatry, 164, 1395–1403.

Books and Memoirs on Ethical and Legal IssuesBartol, C. R., & Bartol, A. M. (2004). Psychology and law: Theory, research, and application. Belmont, CA: Thomson/Wadsworth.

A detailed overview of the ways psychology and the law interact.Ewing, C. P., & McCann, J. T. (2006). Minds on trial: Great cases in law and psychology. New York: Oxford University Press.

This book describes some famous cases and the role of psychologists in these cases.La Fond, J. Q., & Durham, M. L. (1992). Back to the asylum: The future of mental health law and policy in the United States. New York: Oxford University Press.

This book explores the mental health laws and policies in the United States, and the lack of emphasis on individual rights.


Wright, R. G. (2009). Sex offender laws: Failed policies, new directions. New York: Springer Publications.

This book examines current laws on sex offenses and possible ways to prevent sex offender recidivism.

ADDITIONAL MEDIA RECOMMENDATIONSHoblit, G. (Director). (1996). Primal fear. [Film]. USA: Paramount Pictures.

An attorney defends a boy who has witnessed a crime, and the defendant claims he has multiple personality disorder.Kasdan, L. (Director). (1999). Mumford. [Film]. USA: Touchstone Pictures.

Shows a psychologist in a small town struggling with the ethical code.Kassell, N. (Director). (2005). The Woodsman. [Film]. USA: Sony Pictures Home Entertainment.

Shows some of the legal issues for sexual offenders.

WEB SITESAmerican Psychological Society, Division 41, American Psychology—Law Society: Includes latest news, career information, and research and publications. http://www.ap-ls.org/Bazelon Center for Mental Health Law: Legal information about protecting the rights of people with mental illness. http://www.bazelon.org/MacArthur Research Network on Mental Health and the Law: Information on mental health laws. http://www.macarthur.virginia.edu/mentalhome.html


WORKSHEET 16.1

M’NaghtenIrresistible Impulse Durham

American Legal Institute

Insanity Defense Reform Act

Year/Place

Description

Strengths

Weaknesses

Misc.

Documents

resources (by Author)/R... · Web viewprevalence, wrong versus illegal, abstract versus specific understanding, assessing insanity for the insanity defense, states’ rights: doing